Sedation Law in India Pravas IX
Sedation Law in India Pravas IX
INTRODUCTION
#https://en.wikipedia.org/wiki/Sedition#India
Sedition is overt conduct, such as speech and organization, that tends toward insurrection against
the established order. Sedition often includes subversion of a constitution and incitement of
discontent towards, or resistance against established authority. Sedition may include any
commotion, though not aimed at direct and open violence against the laws. Seditious words in
writing are seditious libel. A seditionist is one who engages in or promotes the interest of
sedition.
Typically, sedition is not considered a subversive act, and the overt acts that may be prosecutable
under sedition laws vary from one legal code to another. Where the history of these legal codes
has been traced, there is also a record of the change in the definition of the elements constituting
sedition at certain points in history. This overview has served to understand the definition of
sedition as well, within the study of state persecution.
UNDERSTANDING SEDITION LAW INDIA
Indian cases
In 2010, writer Arundhati Roy was sought to be charged with sedition for her comments on
Kashmir and Maoists.1 Two individuals have been charged with sedition since 2007.2 Binayak
Sen, an Indian doctor and public health specialist, and activist was found guilty of sedition.3 He
is national Vice-President of the People's Union for Civil Liberties (PUCL). On 24 December
2010, the Additional Sessions and District Court Judge B.P Varma Raipur found Binayak Sen,
Naxal ideologue Narayan Sanyal (politician) and Kolkata businessman Piyush Guha, guilty of
sedition for helping the Maoists in their fight against the state. They were sentenced to life
imprisonment, but he got bail in Supreme Court on 16 April 2011.4
On 10 September 2012, Aseem Trivedi, a political cartoonist, was sent to judicial custody till 24
September 2012 on charges of sedition over a series of cartoons against corruption. Trivedi was
accused of uploading "ugly and obscene" content to his website, also accused of insulting the
Constitution during an anti-corruption protest in Mumbai in 2011. Trivedi's arrest under sedition
has been heavily criticised in India. The Press Council of India (PCI) termed it a "stupid" move.5
In February 2016, JNU student union president Kanhaiya Kumar was arrested on charges of
Sedition & raising voice for the "tukde tukde gang" under section 124-A of Indian Penal Code
(which was part of the sedition laws implemented by the British Rule). His arrest raised political
turmoil in the country with academicians and activists marching and protesting against this move
by the government. He was released on interim bail on 2 March 2016 for a lack of conclusive
evidence.6
On 17 August 2016, Amnesty International India was booked in a case of "sedition" and
"promoting enmity" by Bengaluru police. A complaint was filed by ABVP, an all India student
organisation affiliated to Nationalists RSS.
In September 2018, Divya Spandana, the Congress Social Media chief was booked for sedition
for calling Narendra Modi, the prime minister of India, a thief.7 On 13 January 2019, The Delhi
1
"Sedition and treason: the difference between the two", IBN Live, 25 October 2010.
2
Sedition and treason: the difference between the two. IBNLive (11 September 2012). Retrieved on 2015-09-19.
3
Binayak Sen's mother breaks down on hearing HC verdict. news.oneindia.in (10 February 2011)
4
It’s the first step towards justice, says Sen Release Committee. Indian Express (16 April 2011). Retrieved on 2015-
09-19.
5
Cartoonist Aseem Trivedi sent to judicial custody, govt faces flak Archived 12 September 2012 at the Wayback
Machine. Hindustantimes.com. Retrieved on 19 September 2015.
6
Mathur, Aneesha (3 March 2016). "JNU row: Kanhaiya Kumar gets bail and a lesson on thoughts that 'infect…
(like) gangrene'". The Indian Express. Retrieved 29 January 2018.
7
"Hours after sedition case, Congress' Divya Spandana again tweets 'PM Chor Hai'". Deccan Chronicle. Mumbai.
27 September 2018. Retrieved 9 October 2018.
UNDERSTANDING SEDITION LAW INDIA
Police filed a chargesheet on Monday against former Jawaharlal Nehru University Students'
Union (JNUSU) president Kanhaiya Kumar and others in a sedition case lodge in 2016.8
On 10 January 2019, a sedition case was registered suo-motto against Noted Cambridge Scholar
and Assamese Intellectual Dr Hiren Gohain and 2 others for their remarks against the Citizenship
(Amendment) Bill. Dr. Gohain (80) called the move “a desperate attempt by a cornered
government.”9
# https://indianexpress.com/article/opinion/columns/why-sedition-law-has-lost-meaning-
supreme-court-democracy-5993643/
Various Indian courts have repeatedly ruled against the constitutionality of this British-era
legislation.
In a recent lecture, Justice Deepak Gupta, a sitting judge of the Supreme Court, noted how the
provision in the Indian Penal Code providing for punishment for seditious speech is misused
often than not. Justice Gupta wondered whether the time is ripe to have a relook at the law.
Article 19(1)(a) of the Constitution guarantees freedom of speech and expression, subject only to
Article 19(2) which saves any law that imposes “reasonable restrictions” on the limited grounds
of interests of the sovereignty and integrity of India, the security of the state, friendly relations
with foreign states, public order, decency or morality or in relation to contempt of court,
defamation etc.
Section 124A of the IPC defines sedition and makes every speech or expression that “brings or
attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the
Government established by law in India” a criminal offence punishable with a maximum
sentence of life imprisonment. It is classified as “cognisable” — the investigation process
(including the powers to arrest) can be triggered merely by filing an FIR, without a judicial
authority having to take cognisance — and “non-bailable” — the accused cannot get bail as a
matter of right, but is subject to the discretion of the sessions judge.
The illiberal sting in Section 124A is somewhat taken away by an explanation to the provision
that clarifies that mere “disapprobation of the administrative or other action of the Government
without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an
offence under this section,” and a long line of judicial decisions, including the five-judge
constitutional bench decision of the Supreme Court in Kedarnath v. State of Bihar (1962). The
8
"JNU case: Delhi Police charge Kanhaiya Kumar, others with sedition | Delhi News - Times of India". The Times of
India.
9
"Sedition charges absurd and grotesque: Hiren Gohain". Times of India.
UNDERSTANDING SEDITION LAW INDIA
apex court in Kedarnath read down Section 124A to mean that only those expressions that either
intend to or have the tendency of causing violence are punishable under Section 124A. The Court
reiterated the Kedarnath law in 2016 in Common Cause v. Union of India, directing all
authorities to scrupulously follow the Kedarnath dictum. The SC has, however, not had a chance
to reopen the issue of constitutionality of Section 124A since 1962.
The court in Kedarnath (1962) did not have the benefit of the jurisprudence of fundamental
rights that was established by the 11-judge bench decision in R C Cooper v. Union of India
(1969) and later, reaffirmed in Indira Gandhi v. Raj Narain (1975), Maneka Gandhi v. Union of
India (1978), I.R. Coelho v. State of Tamil Nadu (2007) and, more recently in Puttaswamy v.
Union of India (2017). Each of these decisions now establish that fundamental rights in the
Constitution are not to be read as isolated silos or as water-tight compartments, but are to be read
as if the content of each fundamental right animates the other. They tell us that the entire chapter
on fundamental rights has also to be read “synoptically” (see Indira Gandhi & I R Coelho). The
court in Kedarnath merely tested the intent of the provision whether being covered under the
exceptions to the freedom of speech under Article 19(2) of the Constitution; it did not, for
instance, take into consideration the effect of the right to equality (Article 14) or due process
(Article 21).
The conjoint reading of Articles 14, 19 and 21 (from Maneka Gandhi), has now evolved the
jurisprudence of testing legislation curtailing fundamental rights on the anvil of substantive and
procedural reasonableness, necessity and proportionality. The requirement of “necessity” in part
comes from India having ratified in the International Covenant of Civil and Political Rights in
1976, which in its Article 19 requires speech-limiting state action to be backed by a law and to
be necessary on the grounds of respect for rights and reputations of others, national security etc.
Even otherwise, the court in 1962 was not, and could not, have been alive to the consideration of
international law and international conventions in interpreting India’s fundamental rights — a
practice established only since Jolly Varghese v. Bank of Cochin (1980).
All these developments have now led to us understanding “necessity” in the context of state
action limiting fundamental freedoms as the burden being on the state to establish that such a
limiting measure is “necessary in a democratic society” (Modern Dental College v. State of
Madhya Pradesh, 2016). A rough idea of “proportionality” has informed the understanding of
“reasonableness” of restrictions in Article 19 since Chintaman Rao v. State of M.P (1951).
However, the understanding of necessity and proportionality under the Constitution to mean the
burden being on the state to show that the rights-limiting measure to be the least restrictive of all
available alternatives is of recent vintage (2J in Union of India v. Ganayutham, 1997 and more
recently, Modern Dental, 2016).
UNDERSTANDING SEDITION LAW INDIA
The Kedarnath court in 1962 also did not examine the provision for “chilling effect” on speech it
causes — that is, probability of state action causing psychological barriers in the free exercise of
the right to free speech. The doctrine of chilling effect gets established even in the US only in
1967, starting with Justice Brennan’s dissenting opinion in Walker v. Birmingham. Indian
judgments didn’t use that expression until late 1980s.
The court in Kedarnath also could not have examined Section 124A shedding the presumption as
to its constitutionality. It is only as recently as in 2018 (Navtej Johar v. Union of India), that the
court found that pre-constitutional legislations have no legal presumption of constitutionality.
Incidentally, that was the case in which the court re-examined the constitutionality of Section
377 of the Indian Penal Code, which, among other things, criminalised consensual same-sex acts,
despite an earlier judgment having examined and upheld the provision.
If there is a challenge to the provision today, the court will have to keep in mind all of these
developments! The court may also need to examine the classification of the offence of sedition
as cognisable and non-bailable and whether that aggravates the chilling effect.
# https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-
sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09***
Here we will tell you about the Sedition law as a whole. The use and misuse of Section 124A of
IPC have been a subject of public debate for a very long time in India.
In recent times, there has been an increase in the instances in which sedition charges were
pressed against intellectuals, human rights activists, filmmakers, university teachers, students,
and journalists.
What is sedition?
The Indian Penal Code defines sedition (Section 124A) as an offence committed when "any
person by words, either spoken or written, or by signs, or by visible representation, or otherwise,
brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection
towards the government established by law in India".
Disaffection includes disloyalty and all feelings of enmity. However, comments without exciting
or attempting to excite hatred, contempt or disaffection, will not constitute an offence under this
section.
UNDERSTANDING SEDITION LAW INDIA
Sedition is a non-bailable offence. Punishment under the Section 124A ranges from
imprisonment up to three years to a life term, to which fine may be added.
A person charged under this law is barred from a government job. They have to live without their
passport and must produce themselves in the court at all times as and when required.
The law was originally drafted in 1837 by Thomas Macaulay, the British historian-politician, but
was inexplicably omitted when the IPC was enacted in 1860.
Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephen when it
felt the need for a specific section to deal with the offence. It was one of the many draconian
laws enacted to stifle any voices of dissent at that time.
Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist
elements
It protects the elected government from attempts to overthrow the government with violence and
illegal means. The continued existence of the government established by law is an essential
condition of the stability of the State
If contempt of court invites penal action, contempt of government should also attract punishment
Many districts in different states face a Maoist insurgency and rebel groups virtually run a
parallel administration. These groups openly advocate the overthrow of the state government by
revolution
Against this backdrop, the abolition of Section 124A would be ill-advised merely because it has
been wrongly invoked in some highly publicized cases
Section 124A is a relic of colonial legacy and unsuited in a democracy. It is a constraint on the
legitimate exercise of constitutionally guaranteed freedom of speech and expression.
UNDERSTANDING SEDITION LAW INDIA
Dissent and criticism of the government are essential ingredients of robust public debate in a
vibrant democracy. They should not be constructed as sedition. Right to question, criticize and
change rulers is very fundamental to the idea of democracy.
The British, who introduced sedition to oppress Indians, have themselves abolished the law in
their country. There is no reason, why should not India abolish this section.
The terms used under Section 124A like 'disaffection' are vague and subject to different
interpretation to the whims and fancies of the investigating officers.
IPC and Unlawful Activities Prevention Act have provisions that penalize "disrupting the public
order" or "overthrowing the government with violence and illegal means". These are sufficient
for protecting the national integrity. There is no need for Section 124A.
The sedition law is being misused as a tool to persecute political dissent. A wide and
concentrated executive discretion is inbuilt into it which permits the blatant abuse.
In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which
sets forth internationally recognized standards for the protection of freedom of expression.
However, misuse of sedition and arbitrary slapping of charges are inconsistent with India's
international commitments.
The data released by the National Crime Records Bureau for the year between 2014 and 2016
reflect the disutility of the law for the criminal justice system.
Under the title 'offences against the State' the report shows a total of 179 arrests for sedition.
However, no charge sheets were filed by the police in over 70% of the cases, and only two
convictions during this time period. This data belie the claim for retaining the Section 124A of
IPC.
In August 2018, the Law Commission of India published a consultation paper recommending
that it is time to re-think or repeal the Section 124A of the Indian Penal Code that deals with
sedition.
In its 39th Report (1968), the Law Commission had rejected the idea of repealing the section.
UNDERSTANDING SEDITION LAW INDIA
In its 42nd Report (1971), the panel wanted the scope of the section to be expanded to cover the
Constitution, the legislature and the judiciary, in addition to the government to be established by
law, as institutions against which 'disaffection' should not be tolerated.
In the recent consultation paper on the sedition, the Law Commission has suggested invoking
124A to only criminalize acts committed with the intention to disrupt public order or to
overthrow the Government with violence and illegal means.
The constitutionality of sedition was challenged in the Supreme Court in Kedar Nath Vs State of
Bihar (1962). The Court upheld the law on the basis that this power was required by the state to
protect itself. However, it had added a vital caveat that "a person could be prosecuted for sedition
only if his acts caused incitement to violence or intention or tendency to create public disorder or
cause disturbance of public peace".
The court held that "a citizen has a right to say or write whatever he likes about the Government,
or its measures, by way of criticism or comment, so long as he does not incite people to violence
against the Government established by law or with the intention of creating public disorder".
In September 2016, the Supreme Court had reiterated these necessary safeguards and held that
they should be followed by all authorities.
The United Kingdom deleted the seditious libel through the Coroners and Justice Act, 2009.
Conclusion:
India is the largest democracy of the world and the right to free speech and expression is an
essential ingredient of democracy. The expression or thought that is not in consonance with the
policy of the government of the day should not be considered as sedition. The Law Commission
has rightly said, "an expression of frustration over the state of affairs cannot be treated as
sedition". If the country is not open to positive criticism, there would be no difference between
the pre- and post-Independence eras.
Of course, it is essential to protect national integrity. Given the legal opinion and the views of the
government in favour of the law, it is unlikely that Section 124A will be scrapped soon.
UNDERSTANDING SEDITION LAW INDIA
However, the section should not be misused as a tool to curb free speech. The SC caveat, given
in Kedar Nath case, on prosecution under the law can check its misuse.
(Article by ClearIAS Team. ClearIAS.com is a popular website which helps IAS aspirants to
prepare for UPSC Civil Services Exam online)
# https://en.wikipedia.org/wiki/Section_124A_of_the_Indian_Penal_Code
Section 124A of the Indian Penal Code lays down the punishment for sedition. The Indian Penal
Code was enacted in 1860, under the British Raj. Section 124A forms part of Chapter VI of the
Code which deals with offences against the state. Chapter VI comprises sections from 121 to
130, wherein section 121A and 124A were introduced in 1870. The then British government in
India feared that Muslim preachers on the Indian subcontinent would wage a war against the
government. Throughout the Raj, this section was used to suppress activists in favour of national
independence, including Lokmanya Tilak and Mahatma Gandhi, both of whom were found
guilty and imprisoned. The section kept drawing criticism in the independent India as well for
being a hindrance to the right to free speech.
Contents
1 Text
2 History of development
3 Notable cases
3.1 Pre-independence
3.2 Post-independence
4 Criticism
imprisonment for life, to which fine may be added, or with imprisonment which may extend to
three years, to which fine may be added, or with fine.
Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.
History of development
The section related to sedition initially had its place in the code, as Section 113, when Thomas
Babington Macaulay drafted the Penal Code in 1837. However, for reasons unknown, it was
omitted from the actual Code. It was finally added in 1870 on the suggestion of James Fitzjames
Stephen, at the time handling legal issues in the colonial Government of Indian.[2] Due to
10
"Section 124A in The Indian Penal Code". Indian Kanoon. Retrieved 22 May 2019.
11
Gaur, Krishna Deo (2009). Textbook on the Indian Penal Code. Universal Law
Publishing. pp. 220, 226–227. ISBN 8175347031.
UNDERSTANDING SEDITION LAW INDIA
increasing Wahabi activities, and fearing that Muslim preachers would incite religious war in the
Indian subcontinent, the Raj introduced this section under the title "Exciting disaffection".12
Stephen's version of 1870 was amended to a large extent through IPC Amendment Act of 1898.
The current section stands very much similar to this 1898's section; however minor alterations
were made at various points in India's colonial and post-colonial history—in 1937, 1948, 1950,
and by Part B States (Law) Act, 1951.[2]
Notable cases
Pre-independence
The first known registered case under the section was in Calcutta High Court in 1891; Queen
Empress v Jogendra Chunder Bose. Bose's article, published in his own Bengali magazine
Bangobasi, criticized the Age of Consent Act, 1891. The Act was described as "forced
Europeanisation" and a gag on Hindus, who were described as legally incapable and prevented
from rebelling against the Act. The authorities put forth a claim that Bose had incited rebellion;
in his instructions to the jury, the Chief Justice William Comer Petheram explained the meaning
of "disaffection" as "a feeling contrary to affection, in other words, dislike or hatred" and linked
it with disobedience towards the government.[3] Bose was nevertheless released on bail, and the
case was dropped.13
The sedition trial of 1897 against Lokmanya Tilak is historically famous. Tilak, a lawyer by
training, was also politically active in support of independence. He established and published
two dailies—Kesari in Marathi and Mahratta in English; both being published from Pune. In
1894, Professor R. P. Karkaria presented his paper on the Maratha king Shivaji to the Royal
Asiatic Society in Bombay. This turned into an annual celebration commemorating the
anniversary of Shivaji's coronation. Three years later, Tilak published reports of this celebration,
as "Shivaji's Utterances"; this essay doubled as an attack on the colonial government. Justice
Arthur Strachey, who presided over Tilak's case, widened the understanding of Section 124A.
Under Strachey's definition, the attempt to excite "feelings of enmity" against government was
also a form of sedition. Tilak was found guilty by the jury and sentenced to 18 months of
rigorous imprisonment.[3][4] Tilak again faced charges against sedition for two Kesari articles,
titled "The Country's Misfortune" (12 May 1908) and "These Remedies Are Not Lasting" (9 June
12
Bhatia, Gautam (2016). Offend, Shock, or Disturb: Free Speech under the Indian
Constitution. Oxford University Press. ISBN 9780199089529.
13
Saxena, Namit (8 July 2018). "A Look Back At Tilak's Sedition Trials". Live Law.
Retrieved 28 May 2019.
UNDERSTANDING SEDITION LAW INDIA
1908). He was again found guilty under the newly drafted section 124A, and sentenced to six
years of imprisonment in Burma.14
In 1922, Mahatma Gandhi three articles for Young India resulted into his and Shankarlal
Banker's imprisonment under the sedition section. While appearing in court, Gandhi referred to
Section 124A as the "prince among the political sections of the Indian Penal Code designed to
suppress the liberty of the citizen".15
Post-independence
In 1951, the Punjab High Court ruled Section 124A to be unconstitutional. A similar ruling was
passed in 1959 by the Allahabad High Court, which also concluded that it struck at the very root
of free speech. The Government of India appealed to the Supreme Court of India, which in 1962
ruled that speeches against the government or political parties was not illegal, while upholding it
as applicable to separatism by persuasion or force; this pronouncement had the effect of diluting
the law.1617
During the 21st century, various notable authors, creative professionals, activists and politicians
have been charged with sedition under Section 124A. Cases include Praveen Togadia (2003),
Simranjit Singh Mann (2005), Binayak Sen (2007), Arundhati Roy (2010), and Aseem Trivedi
(2012).18
Criticism
14
"Panel Discussion on Free Speech and Sedition in a Democracy". The Hindu. 24 March
2016. Retrieved 28 May 2019.
15
"Republic of dissent: Gandhi's sedition trial". Live Mint. 25 January 2019. Retrieved 29
May 2019.
16
"Anti-sedition law needs the bin". Economic Times. 15 January 2019. Retrieved 27
May 2019.
17
Prakash, Satya. "To repeal or not: Nehruvian dilemma on sedition law". 10 September
2018 (The Tribune). Retrieved 27 May 2019.
18
"5 high profile sedition cases in India". Rediff. 13 September 2012. Retrieved 28 May
2019.
UNDERSTANDING SEDITION LAW INDIA
In post-independence India, Section 124A came under criticism at numerous intervals, being
singled out for its curbing of free speech. When the First Amendment of the Constitution of India
was passed in 1951, Prime Minister Jawaharlal Nehru proposed to "get rid of it [Section 124A]"
as written, and favoured handling sedition-related by other means.[8] In 2018, the Law
Commission of India published a consultation paper that asked for a possible amendment or
repeal of the law.19 During the 2019 Indian general election, the opposition Indian National
Congress (INC) included a specific proposal to abolish Section 124A in their manifesto.20
However, while the INC-led United Progressive Alliance had been in power (2004–2014), the
section had remained intact and was used to file charges on various citizens; following 2012-
2013 protests against Kudankulam Nuclear Power Plant in Tamil Nadu, an "astonishing number"
of citizens faced trial under Section 124A: 23,000 were in temporary custody, of whom 9,000
were arrested only for sedition.21
Several opinion-makers have called for the abolishing of sedition laws in the context of the 2016
protests at the Jawaharlal Nehru University.222324
References
19
Rajagopal, Krishnadas (30 August 2018). "Law Commission calls for re-think on
sedition clause". The Hindu. Retrieved 27 May 2019.
20
"Congress manifesto promises to do away with British-era sedition law". India Today.
2 April 2019. Retrieved 29 May 2019.
21
Biswas, Soutik (29 August 2016). "Why India needs to get rid of its sedition law".
BBC. Retrieved 29 May 2019.
22
"Why India's sedition law needs to be buried". Mint. 18 January 2019. Retrieved 29
May 2019.
23
"The Indian State must scrap the sedition law". Hindustan Times. 15 January 2019.
Retrieved 29 May 2019.
24
R, Jagannathan (24 August 2016). "The Sedition Law Sucks: Time For The
Government To Water It Down To Limited Situations". Swarajya. Retrieved 29 May
2019.